This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 27,978 9 ARMANDO ONTIVEROS, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 David P. Reeb, Jr., District Judge 13 Gary K. King, Attorney General 14 Farhan Khan, Assistant Attorney General 15 Santa Fe, New Mexico 16 for Appellee 17 Hugh W. Dangler, Chief Public Defender 18 Nancy M. Hewitt, Appellate Defender 19 Santa Fe, NM 20 for Appellant 21 MEMORANDUM OPINION 22 KENNEDY, Judge. 23 On October 2, 2009, we stayed issuing a decision in this case because it 242 appeared that one of the i ssues raised by Defendant might be affected by the United 1 States Supreme Court opinion in Melendez-Diaz v. Massachusetts , ___ U.S. ___, 129 2 S.Ct. 2527 (2009), and because the Melendez-Diaz issue was before our Supreme 3 Court in State v. Bullcoming , 2010-NMSC-007, ___ N.M. ___, ___ P.3d ___ (No. 4 31,186, Feb. 12, 2010). On February 12, 2010, our Supreme Court filed its opinion 5 in Bullcomingand its companion case, State v. Aragon , 2010-NMSC-008, ___ N.M. 6 ___, ___ P.3d ___ (No. 31,187, Feb. 12, 2010). The stay i ssued in this case is lifted, 7 we conclude that Issue V raised by Defendant is in all material respects governed by 8 Aragon , and we reverse. 9 BACKGROUND 10 Defendant was convicted of one count of distribution of a controlled substance 11 (methamphetamine) contrary to NMSA 1978, Section 30-31-22 (2005) (amended 12 2006). Proof that the substance transferred by Defendant was methamphetamine was 13 contained in a report generated by the New Mexico Department of Public Safety 14 Northern Forensic Laboratory. The State us ed Mr. James Mitkiff, a forensic scientist 15 employed by the laboratory, to establish a foundation for admission of the report into 16 evidence. However, Mr. Mitkiff testified th at he neither analyzed nor reviewed the 17 original analyst’s testing of the substance. He was only able to testify as to standard 18 laboratory procedures and that the report w ould have conformed to those procedures. 193 The district court admitted the report over Defendant’s objection that he would be 1 unable to cross-examine the preparing analyst and that the report was inadmissible 2 hearsay. Defendant argues th at the district court erred in admitting the laboratory 3 report. We agree. 4 ANALYSIS 5 In Aragon , the New Mexico Supreme Court reconsidered whether admitting a 6 chemical forensic report into eviden ce without testimony from the analyst who 7 prepared the report implicates the right to confrontation under the Sixth Amendment 8 to the United States Constitution in light of Melendez-Diaz

. Aragon , 2010-NMSC9 008, ¶¶ 1-2. In Aragon, a chemical laboratory report was admitted into evidence 10 through the testimony of an analyst who neither supervised the preparing analyst, 11 participated in the analysis , nor prepared the report. Id. ¶ 5. Our Supreme Court 12 concluded that the forensic report was testimonial in nature. Id. ¶ 14. Thus, under 13 Crawford v. Washington , 541 U.S. 36 (2004), Defendant’sSixth Amendment right to 14 confrontation was violated when the analyst who actually prepared the report did not 15 testify. Aragon , 2010-NMSC-008, ¶ 19. 16 Similarly, in this case, Defendant di d not have a meaningful opportunity to 17 cross-examine the analyst who prepared the laboratory report. Mr. Mitkiff, the analyst 18 who testified at trial, neither supervised nor participated in the analysis of the 194 evidence. In addition, he did not review or prepare the report that was offered into 1 evidence. Under Aragon , Defendant’s Sixth Amendment right to confrontation was 2 violated. Moreover, the error was not harmless because it was the only evidence 3 which proved that the substance tested was methamphetamine. Cf. Aragon , 2010- 4 NMSC-008, ¶¶ 34-36 (holding that the admission of one laboratory report into 5 evidence in violation of the defendant’s Sixth Amendment confrontation right was 6 harmless error where a second report was properly admitted into evidence, and the 7 defendant was convicted on onecount of drug possession). 8 Because we conclude that it was reversib le error to admit the laboratory report 9 into evidence, we do not reach Defendant’s remaining arguments. 10 CONCLUSION 11 Defendant’s conviction and sentence are vacated and this matter is remanded 12 to the district court for further proceedings consistent with this opinion. 13 IT IS SO ORDERED. 14

___________________________________ 15 RODERICK T. KENNEDY, Judge 16 WE CONCUR : 17

___________________________ 18 ROBERT E. ROBLES, Judge 195 ___________________________ 1 TIMOTHY L. GARCIA, Judge 2